1. Intellectual Property -
Challenges for the Journalist
European Journalism Centre
Maastricht
November 2008
Richard Allan Horning
Fish & Richardson PC
Silicon Valley
rhorning@fr.com
RICHARD ALLAN HORNING
Principal, Venture Technology Group, Fish & Richardson P.C.,
Silicon Valley
Practicing Law in Silicon Valley Since 1970. Former Law Clerk,
US Court of Appeals (Ninth Circuit)
Clients have included Rolling Stone Magazine, Time-Life, New
York Times, Intel, Honeywell, Data General, Piaggio SpA,
Hewlett-Packard, Gigabit A/S [sale to Intel], Acer, Celo
Communications Ltd [financed by Investor Growth Capital and
sold to Gemplus]
Past President, International Technology Law Association

2. INTELLECTUAL
PROPERTY

3. PROPERTY
THE OUTPUT OFJOURNALISM IS
INTELLECTUAL PROPERTY
• Reportage
• Photo Journalism
• Commentary
• Criticism and Reviews
• Editorial

4. WHO OWNS THE
OUTPUT OF REPORTERS
• The Publication / Employer
– “Work for Hire”
– Contracts as Controlling
– Droit Morale
• Free Lance Journalist
• “Blogger”
WHO CONTROLS THE
OUTPUT OF JOURNALISTS
• The “Boss”
• The Government
– Sunshine Laws
• Private Industry
– Libel Actions
– Trade Secrets
– Copyright Infringement
• Fair Use
• The News Source
– Privacy Laws
• Journalist Privilege

5. JOURNALISM’S IMPACT ON THE
ECONOMY AND INNOVATION
• Influences Political Decisions
• Spots and Promotes Consumer Trends
• Starts Mass Movements
• Can Help Shape Public Attitudes
JANUARY 24, 1848
Eureka !
“Gold Mine Found”, The Californian, March
15, 1848
“California, no doubt, is rich in mineral wealth;
great chances are here for scientific capitalists”

6. THE BIG FOUR
Crocker, Hopkins, Stanford, Huntington
OPENING THE WEST
1863 - 1869

7. THE FARM
CROCKER RESEARCH LAB

8. WHERE IT ALL STARTED
TV
CLEAN TECH IS ATTRACTING
THE BIG BOYS
“Represents the biggest economic
opportunity of this century”
- John Doerr, Kleiner Perkins, November 2006

9. WHO KNEW TONY WAS
A CLEAN TECH ENTREPRENEUR
VC INVESTMENTS IN CLEAN TECH
• $263 M invested in 2002
• $224 M invested in 2003
• $418 M invested in 2004
• $497 M invested in 2005
• $1,496M invested in 2006
• $2,188M invested in 2007
• $2,758M invested thru Q3, 2008

10. WHO IS A JOURNALIST
AND WHY DOES IT MATTER
• Preferential Access to News Sources
• Invitations to Newsworthy Events
• Journalism as “Fair Use”
• “Invitations” to Disclose Facts
• Prohibitions Against Attendance and
Publication
THE CHALLENGES OF
“DOING JOURNALISM”
• Honor and Respect of the Public
• Vilification as a “Left Wing” / “Right Wing”
Stooge

11. GOVERNMENT INTERFERENCE
WITH THE PRACTICE OF JOURNALISM
US v Earl Caldwell
• Supreme Court in companion case Branzburg v Hayes
(1972) held that there is no First Amendment news
gathering privilege
• US v Earl Caldwell held that a journalist, like any other
citizen, can be compelled to appear before a secret grand
jury
• Outcome was state “shield” laws, allowing journalists to
assert privilege against source disclosure under certain
circumstances
• Outcome was Dept of Justice guidelines restricting US
government requiring journalists to divulge sources unless
it’s the last resort
• Note that publications can be sued for breaching
obligations of confidentiality (Cohen v Cowles Media,1991)

12. GOVERNMENT CONTROL OF ACCESS
ANGELA DAVIS
• Without any legal authorization the Marin
County Sherriff refused to allow press
interviews of Angela Davis following her
arrest for conspiracy to commit murder
• Time / Life threatened to sue the Sherriff
to gain access
• Suit dropped when Ms. Davis put
unacceptable conditions on the jail house
interview with Time

13. GOVERNMENT CONTROL OF ACCESS
GOVERNMENT CAN CONTROL
ACCESS BY DENYING ACCESS
• Hunter Thompson, acclaimed “gonzo” journalist
and political reporter, denied press credentials
by Ron Ziegler and Nixon White House
• Suit threatened by Rolling Stone to force
issuance of White House press credentials
• Suit dropped when Thompson went to Mexico
instead.

14. GOVERNMENT CAN CONTROL
ACCESS BY DENYING ACCESS
• Obama kicks Fox News reporters off his
campaign airplane
• Fight at 2008 Democratic Convention as to
who would be given press credentials –
issues was “bloggers” as journalists
GOVERNMENT DOES NOT HAVE TO
GIVE ACCESS TO SOURCES
• Sunshine laws usually have an exemption for
law enforcement
• California law provides an exception, that name
of arrested person and the victim may be given
to persons who swear that it is to be used for
journalistic purpose
– Opinion of California Attorney General (2006)
confirms that law enforcement agency may not
require evidence in support of sworn declaration
– Requester need not have press “credentials”
– Journalist requester need not monitor subsequent use
of the information obtained

15. GOVERNMENT RETRIBUTION
AGAINST JOURNALISM
US v New York Times
• Established that government cannot,
except the most extraordinary
circumstances, prevent publication of
articles
• This does not mean, of necessity,
publication cannot be preliminarily
enjoined
– MTA vs MIT Students re hacked Charlie
Cards

16. GOVERNMENT INTERFERENCE
WITH JOURNALIST INVESTIGATIONS
“INVITATIONS” TO
DISCLOSE FACTS AND SOURCES
• Most recent rejection of special journalist
privilege again revelation of sources, whether
based on First Amendment or federal “common
law”, is US v Miller (2007)
• Investigation into who “outed” Valeria Plame, an
alleged CIA agent whose husband Joseph Miller
wrote a report denying that Saddam Hussein
was buying uranium from Niger.
• Ms. Miller spent 43 days in jail before being
released by her source.

17. “INVITATIONS” TO
DISCLOSE FACTS AND SOURCES
PEOPLE V PATTY HEARST, WILLIAM
AND EMILY HARRIS

18. “INVITATIONS” TO
DISCLOSE FACTS AND SOURCES
“INVITATIONS” TO
DISCLOSE FACTS AND SOURCES
• In prosecution of William and Emily Harris,
leaders of the SLA, for murder arising out of Los
Angeles “Sporting Good Store Shootout”
defendants subpoenaed the two Rolling Stone
reporters
• At first they voluntarily testified, but refused to
reveal sources
• In face of motion to quash subpoena and
protective order based on First Amendment and
California shield law, the reporters excused from
testifying

19. PRIVATE ATTEMPTS
AT CONTROL OF JOURNALISM
• Apple v Does
• MTA v MIT Students
• DeCSS vs Bloggers
UNFORSEEN OPPORTUNITIES FOR
EXPLOITATION OF IP
• New York Times v Tasini (2001)
– Free lance authors licensed print versions
– Compilation by NY Times in databases
violated copyright of journalists

20. UNFORSEEN OPPORTUNITIES FOR
EXPLOITATION OF IP
“I NEVER SAW THE COVER”

21. CONCLUDING POINTS
• Journalists create and own intellectual property
• Control of use of journalist IP will devolve to contract,
with the decline of “employee” journalists in the wake of
declining circulation of main stream press
• Who is a “journalist” will remain an important question
• Professional organizations can play an important role in
developing standards for defining what constitutes “doing
journalism”
• Opportunities for multiple exploitation of the “work” may
exist
• Independent Journalists need financially powerful
friends!